Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Thursday, December 31, 2009

The end of the year is, in a sense, about borders. A large chunk of the human community has chosen to create borders to mark the passage of time--but those divisions become borders. they assume a spatial dimension as well as a chronological one. Tonight marks a passage through one of the more significant borderlands of time--we move from one year to another. That passage acquires a symbolic dimension far greater than its temporal importance. Time, then, has a great geographic dimension. Its borders are a basis for the construction of human reality--and is essential to its organization. All of this is well known.

Yet perhaps less well appreciated is the centrality of borders --the spacial dimension--to other fundamental conceptions that mark human organization. The close tie between language, geography and religious conceptions of behavior norms is a case in point.

Anyone who indulges in profanity is irreverent and sacrilegious. This word is based on the Latin profanum, from pro, "before", "outside", and farum, "temple". Since the profane man is outside of the temple, he is unholy. The fanatic, however, is in and out of the fanum, or temple. In Latin fanaticus means "of the temple," and so "inspired by divinity." Nowadays a fanatic is one who is moved by a frenzy of enthusiasm over something. We moderns for our convenience have whittled fanatic down to the three letter word fan--a person who works himself into a frenzy of enthusiasm over, say, baseball.

Wilfred Funk, Word Origins and their Romantic Stories 275 (New York: Bell Publishing, 1950).The human condition appears grounded in "drawing lines in the sand." We suggest the creation or declaration of an artificial boundary and imply that crossing it will cause trouble; yet that boundary is neither artificial nor easily avoided.

And thus the thought for year's end: The problem of borders remains the central issue of human organization--in all of its aspects. These borders are all intangible, though they appear symbolically rendered on land, and in religious, space, political and legal space. The traditional borderlands of national territory have been overwhelmed by other boundaries. These will reshape human organization in the coming decade as each strives for both autonomy and control within an increasingly leveled polycentric global communal space. This will make singular efforts at order increasingly difficult even as the structures of a unified global communal space appear to gain form and function. We are moving toward the day when we will be profane fanatics--divinely inspired to stand both within and outside the temple space. Happy New Year.

A recent re-reading of a book published during the middle period of the Papacy of John Paul II, Crossing the Threshold of Hope (Vittorio Messori, ed., New York: Knopf, 1994) reminds us that the tensions in the relations between Catholics and Islam has a strongly theological basis. But it also suggests that because the tensions are fundamentally theological, there is a space for dialogue. However, that space is quite different from those who measure those things in secular, pluralist ways. John Paul II's brief thoughts on those issues are worth considering carefully, both because they provide a straightforward introduction to a set of complex communicative problems, and because they point forward to the Catholic position on its sense of certain aspects of Islam that, during the Papacy of Benedict XVI, produced significant popular reaction.

'The Church also has a high regard for the Muslims, who worship one God, living and subsistent, merciful and omnipotent, the Creator of heaven and earth' (Nostra Aetate 3). As a result of their monotheism, believers in Allah are particularly close to us.

John Paul II, Crossing the Threshold of Hope, supra at 91 (Mohammad?). The privileging of monotheism as the connection between the faiths is important for suggesting as much what separates and the little (though fundamental) basis on which they overlapped.

But John Paul II does not venture there directly. Rather, the cited passage of Nostra Aetate brings forth a strong memory that he recounts.

I remember an event from my youth. In the convent of the Church of Saint Mark in Florence, we were looking at the frescoes by Fra Angelico. At a certain point a man joined us who, after sharing his admiration for the work of this great religious artist immediately added: 'But nothing can compare to our magnificent Muslim monotheism.' His statement did not prevent us from continuing the visit and the conversation in a friendly tone.

John Paul II, Crossing the Threshold of Hope, supra at 92 (Mohammad?). This memory served as metaphor and template for the framework of any workable dialog between Christianity and Islam. Id. ("It was on that occasion that I got a kind of first taste of the dialogue between Christianity and Islam, which we have tried to develop systematically in the post-conciliar period." Id.).

That framework is grounded on a great theological chasm between Christianity and Islam. It is to a description of that chasm and its foundational importance to Christian conceptions of religion that John Paul II then turns.

Whoever knows the Old and New Testaments, and then reads the Koran, clearly sees the process by which it completely reduces Divine Revelation. It is impossible ot to note the movement away from what God said about Himself, first in the Old Testament through the Prophets and then finally in the New Testament through His Son. In ISlam all the richness of God's self-revelation, which constitute the heritage of the Old and New Testaments, has definitely been set aside.

John Paul II, Crossing the Threshold of Hope, supra at 92 (Mohammad?). This is the heart of the essay--its vital link to current thinking. The space between Islam and Christianity can be measured, then by Divine historicity. The geography of the Divine presence--where he is, has been will be, is a central eleemnt of dicergence at the core of the two religious paths. "Some of the most beautiful names in the human language are given to the God of the Koran, but He is ultimately a God outside of the world, a God who is only Majesty, never Emmanuel, God-with-us. Islam is not a religion of redemption. . . . . For this reason not only the theology but also the anthropology of Islam is very distant from Christianity." Id., at 92-93. For Christians this is a critical distinction that can produce real world ramifications in the cultural, social, and political spheres.

What then, can serve as the basis for dialogue? John Paul II suggests a starting point, well away from theology or the resulting anthropology of communal norms. That starting point is grounded in the religiosity of Muslims--their embrace of religion--rather than on religion itself. The outward habits of pious Muslims can serve as a point of commonality, like the hard shells that walnuts and pecans have in common, each covering very different flavors. John Paul II explains in this vein that

the religiosity of Muslims deserves respect. It is impossible not to admre, for example, their fidelity to prayer. The image of believers in Allah who, without caring about time or place, fall to their knees and immerse themselves in prayer remains a model for all those who invoke the true God, in particular for those Christians who, having deserted their magnificent cathedrals, pray only a little or not at all. (Id., at 93)

The thrust is unmistakable and clear. The focus of dialogue is on the outward fidelity to religion, the common ground shared by Muslims and Christians. Yet, at the same time, that small space for common ground also necessarily emphasizes that a deeper dialogue is much more difficult.

Yet, a more extensive dialogue, even an outward one, is not impossible. Again, Nostra Aetate provides the lens through which the scope of this dialogue is understood "with the followers of the 'Prophet'" (Id., at 93).

We read in Nostra Aetate: 'Even if over the course fo the centuries Christians and Muslims have had more than a few dissensions and quarrels, this sacred Council now urges all to forget the past and to work toward mutual understanding as well as toward the preservation and promotion of social justice, moral welfare, peace and freedom for the benefit of all mankind.'" (Id., quoting Nostra Aetate at P. 3).

Not just prayer then, but the worldly application of religious doctrine in the form of ethics and morals, can also serve as a common ground. And thus the measurement of progress through joint prayer meetings, "especially that for peace in Bosnia, in 1993, . . . played a significant role." Id. Further meetings with Muslims of Africa and Asia in Muslim majority states, where "the Pope was welcomed with great hospitality and was listened to with great graciousness," (id., at 94) were judged "worthwhile." Id. at 93. "The encounter with the young people at Casablanca Stadium (1985) was unforgettable. The openness of the young people to the Pope's words was striking when he spoke of faith in the one God. It was certainly an unpredecented event." (Id., at 94). Religiosity, prayer, meeting, the emphasis on the monotheistic core, the common moral/ethical agenda. There is the alpha and omega of dialogue.

But which Islam? To answer this question John Paul II returns to focus on the theological anthropology that divides Islam from Christianity.

Nevertheless, concrete difficulties are not lacking. In countries where fundamentalist movements come to power, human rights and the principle of religious freedom are unfortunately interpreted in a very one-sided way--religious freedom comes to mean freedom to impose on all citizens 'true religion.' In these countries the situation of Christians is sometimes terribly disturbing. Fundamentalist attitudes of this nature make reciprocal contacts very difficult. (Id., at 94).

Here one hears what will later form the central element of Benedict XVI's Regensberg speech. Here also is Christianity seeking, through dialogue, to privilege a more dialogue-friendly Islam (as conceptualized within the framework of Nostra Aetate) from its more unmanageable variants. And not merely unmanageable, but aggressively competitive. "All the same, the Church remains always open to dialogue and cooperation." Id. at 94.

In Christian-Muslim Dialogue in the Twentieth Century, Ataullah Siddiqui analyzes the definitions and methods of prominent Muslim scholars in the case of interfaith dialogue. Dialogue is understood as meeting and communicating with other faiths, sharing thoughts and exchanging views, and reaching mutual understanding and respect through focusing on common ground[17].
However, Nursi and Gülen go beyond this understanding of dialogue. Interfaith dialogue needs to be institutionalized and collaboration must take place through joint projects for there to be any effectual dialogue in the atmosphere of skepticism. Dialogue programs occur at a local level with small projects on part of other Muslim organizations, but larger-scale programs and projects that attract public attention are needed[18].
It is for this purpose that Gülen proposed a joint divinity school, student exchange program between divinity schools, and joint trips to holy sites when he met with the Pope. There was no response from the Vatican, possibly due to political conditions in Turkey. If this project had become a reality, it would have been a first and original institution, serving as a model in the world.

The danger and difficulty is embedded in John Paul II's thoughts. He reminds us of the difficulty of communication between visions of the Divine and the divinely inspired world that proceed from two different conceptions of the Divine reality and the world organized thereunder. The same words may be used--but they will be embedded with distinct meanings. The same emotions and positive feelings will be mustered, but they will be laced with different significance. People speak to each other but understand only themselves--because they are capable of hearing others only through themselves.

Perhaps this is the essence of the parable of the Tower of Babel ((Hebrew: מגדל בבל‎ Migdal BavelArabic: برج بابل‎ Burj Babil) recounted in Genesis 11:1-9. Certainly it reminds us that Logos is a wall as well as a place and a road. That "quia ibi confusum est labium universæ terræ" Gen. 11;9 ("because there the language of the whole earth was confounded") has profound effects on Logos as well as labium for all who seek to order their lives through . But this is a lesson with profound application for communication between systems whose foundations are fundamentally distinct, and one worth considering in the slow push for everything from the regulation of multinational corporations to international approaches to climate change, to the construction of systems of transnational constitutionalism.

We must begin by acknowledging the hard truth: We will not eradicate violent conflict in our lifetimes. There will be times when nations -- acting individually or in concert -- will find the use of force not only necessary but morally justified. . . . I face the world as it is, and cannot stand idle in the face of threats to the American people. For make no mistake: Evil does exist in the world. A non-violent movement could not have halted Hitler's armies. Negotiations cannot convince al Qaeda's leaders to lay down their arms. To say that force may sometimes be necessary is not a call to cynicism -- it is a recognition of history; the imperfections of man and the limits of reason." Id.

These sentiments are a luxury most safely enjoyed by the powerful. But nearly a decade after the start of the Afghan War, the American (and coalition) forces have yet to be able to pacify the state and secure a victory (as such things are conventionally understood). The Americans are discovering that, the military aspects of campaigns are proving to be the least satisfying. The war between Islam and the Jews, politely referenced as the Arab-Israeli or Palestine-Israel Wars, may provide a better marker than Mr. Obama's efforts, to show the modern face of conflict.

Two recent stories nicely show the way in which war has evolved--from military conflicts fought with weapons between armies or irregular forces, to global conflicts among lawyers and regulators. The first story is the more conventional of the two. At the behest of "Palestinians", a U.K. court issued an arrest warrant against the former Israeli Foreign Minister Tzipi Livni to call her to account in British courts for the actions of Israel in one phase of its military campaigns against its Palestinian adversaries. UK ponders law change after Tzipi Livni arrest warrant, BBC News Online, Dec. 15, 2009.

The warrant was granted by a London court at the request of Palestinian plaintiffs, provoking Israeli anger. . . . Pro-Palestinian campaigners have tried several times to have Israeli officials arrested under the principle of universal jurisdiction, which holds that some alleged crimes are so grave that they can be tried anywhere, regardless of where the offences were committed. Id.

Though the action was speedily revoked at the instance fo the government, the point had been made. The best way to isolate an enemy is to deny it access to territories beyond that controlled by its armed forces.

Oct 2009: Former military chief Moshe Yaalon cancelled a UK visit because of fears of arrest for alleged war crimes

Sept 2005: Arrest warrant issued for a former head of Israeli forces in the Gaza Strip Gen Doron Almog. He received warning before disembarking from an aircraft at Heathrow Airport, and flew back to Israel. Id.

Lawyers now more visibly assume the role of soldiers in global armies, the objectives of which are to disable the enemy. This doe snot require killing, as it does to carefully aim law and law systems to deprive an enemy of its protection.

The second story is more interesting, and perhaps more telling. Palestinians have convinced U.K. authorities to use labeling laws to attack the economic viability of Israeli settlement communities operating on disputed territory. Food labels advice change over Palestinian territories, BBC News Online, Dec. 11, 2009.

UK food labels are set to distinguish between goods from Palestinians in the occupied territories and produce from Israeli settlements. Food packaging guidelines advise a change from labels usually naming only Israel or West Bank as the source. . . . The new guidelines recommend that food labels in supermarkets should bear the phrases "Israeli settlement produce" or "Palestinian produce".

The effect was to dissociate the government from a policy it officially rejects but appears unofficially to support. "The government said it was opposed to a boycott of Israeli goods, but that the settlements posed an obstacle to peace. " Id. By veiling action behind regulation, it can serve as another battle site over effective control fo the territories now in dispute.

Manuel Hassassian, Palestinian general Delegate to the UK, said: "We welcome this. We have been calling for this for two years, since we began lobbying major British supermarkets when we discovered that they were routinely selling products marked 'produce of the West Bank' which were in fact the produce of illegal settlements. "This is a very positive response by the British government."

And, of course, this was a necessary step in the construction of the expulsion of Israel from global markets. With the invocation of labeling rules, the recently called for boycott of settlement made goods, adopted by an umbrella group of British unionists, can be more easily effected. TUC votes to back Israeli boycott, BBC News Online, Sept. 17, 2009. "Union members have voted to support a boycott of goods produced in Israeli settlements in the occupied territories.Delegates at the TUC in Liverpool backed the move in protest at Israel's military campaign in Gaza in January." Id. Step by step, this economic campaign will have a greater effect than the firing of several hundred small missiles at the Israeli civilian population from Gaza. This is understood by the allies of the combatants. "Hugh Lanning, chairman of the Palestine Solidarity Campaign, said it was a "landmark" decision." Id. But it also evidences the importance of the European battlefront in the way between these peoples.

The result--the Israel-Palestine Wars have gone both global and virtual. No longer confined to that small space that defines the territory that will eventually be split between these two volk, war now involves economic markets, regulators and courts, as well as soldiers, guns, and military strategists, Like markets, warfare is no longer territorially bound. While its objectives may be control of specific territory, the campaigns for such objectives can be fought virtually anywhere. And indeed, taking the war to allied territory in a virtual way has the benefit of advancing military objectives without activating Western squeamishness about casualties. These stories suggest that, rather than focusing on the military front lines, the critical battelfields in the Israel-Palestine wars are far from the territories of either. And it is this kind of war that will lijkely become more common, as the human cost of conventional warfare moves states to different, more efficient, forms of conflict. See, Pentagon preps for economic warfare, Politico, Yahoo News, April 9, 2009 ("The Pentagon sponsored a first-of-its-kind war game last month focused not on bullets and bombs — but on how hostile nations might seek to cripple the U.S. economy, a scenario made all the more real by the global financial crisis. ").

The war game demonstrated that in post-Sept. 11 world, the Pentagon is thinking about a wide range of threats to America’s position in the world, including some that could come far from the battlefield.

And it’s hardly science fiction. China recently shook the value of the dollar in global currency markets merely by questioning whether the recession put China’s $1 trillion in U.S. government bond holdings at risk – forcing President Barack Obama to issue a hasty defense of the dollar.

“This was an example of the changing nature of conflict,” said Paul Bracken, a professor and expert in private equity at the Yale School of Management who attended the sessions. “The purpose of the game is not really to predict the future, but to discover the issues you need to be thinking about.” Id.

Friday, December 11, 2009

The English word pretext is said to derive from the Latin word praetextum--to disguise. But pretextum is the neuter past participle of an action word--praetexere--a word suggesting a weaving as an act of disguise. Pretext thus embraces a notion of altering reality, of weaving a framework reality for a particular purpose. That objective serves both as cloak that covers another reality and also serves as its substitute. Pretext is history in action. It is the ultimate effort of humans to become the managers of their own history. And it is invariably a sloppy and badly managed affair. It is thus the ultimate hubris (ὕβρις)--both pathetic and inevitable among a certain group of people hurtling toward their own destiny. But that is a lesson that human social, political, ethnic and religious communities tend to believe is the fate of others,and not themselves. Each, in turn, weaves their own destiny (usually on the backs of their opponents) in the sure knowledge that they (unlike their predecessors) will "get it right."

But hubris also suggests an intimate connection between the managed disguising inherent in "pretext" and impiety. Where religious communities engage in pretext, it, and especially its leaders, engage in an arrogance that is also sin. There is a certain arrogance against the Divine order in pretext in this context. It serves as a manifestation of the idea that humans can substitute themselves for the Divine in the ordering of the affairs of the world. Pretext serves as a challenge to God, as understood in those communities, it is an acting out of a challenge to the Divine representation in those sects that screams: "I know better than God what is or shall be."

It is thus especially poignant when the leaders of religious communities manipulate the pious, in the name of their Divinity, through pretext to sin, to an insult to the community of believers and to the prophets whose words and lives they purport to uphold. The Iranian religious community had developed an interesting variation on constitutional government grounded in the religious principles of Shi'a Islam. See, Larry Catá Backer, Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering, Indiana Journal of Global Legal Studies, Vol. 16, No. 1, 2008; Islamic Law and Law of the Muslim World Paper No. 08-44.

But having spent three decades perfecting an alternative to the communal constitutionalism of the world community it is now in danger of losing power to factions of the religious and pious who owe the progeny of the founders no personal loyalty. That is the essence of democracy, even theocratic democracy. But it appears that this consequence of the constitutional state the religious elite created is now unacceptable to a portion of that very elite when deployed against its own grip on power. The result was an election the legitimacy of which remains highly contested, at least within Iran, that appeared to keep one faction in power. Paul Reynolds, Iran: Where Did All the Votes Come From?, BBC News Online, June 23, 2009. This has produced a crisis pitting factions within the ruling clerical community and their adherents outside of that community against each other. Iran Opposition Protesters Clash with Security Forces, BBC News Online, Dec. 7, 2009.

But having constructed a constitutional state that incorporates the religious values hich they purport to maintain, how to retain power without appearing to overturn the constitutional order on which the legitimacy of their political authority (and thus also to some extent their religious authority) rests? Pretext and impiety provides the answer.

Iran's Supreme Leader has accused the opposition of breaking the law by insulting the Islamic Republic's founder, Ayatollah Ruhollah Khomeini. Ayatollah Ali Khamenei urged opposition leaders to identify "those behind the insult to Imam Khomeini". The remarks centre on an alleged incident last Monday during which a poster of Imam Khomeini was torn up. Opposition leaders say the alleged incident - shown on state television - has been doctored. The opposition has been refusing to endorse the result of the presidential election in June which returned President Mahmoud Ahmadinejad to power for a second term. They allege the poll was widely rigged. The election dispute is now radicalising both sides, says the BBC's Tehran correspondent, Jon Leyne. Iran opposition accused of insulting founder Khomeini, BBC News Online, Dec. 13, 2009.

The religious elite is set to use impiety against their political opponents. They would use a televised image of a ripped poster with the image of a man serve as the pretext for substantial misapplication of the constitutional structure they purported to create. They appear driven to rip the Constitutional fabric of the Islamic Republic in the same way they ripped the image of the late Ayatollah. They mean to preserve their earthly power even as they weaken the theological underpinning of the Republic created a generation ago. The Ayatollah Khamenei appears set to substitute the rule of individuals for the divine mandate he is purportedly charged with protecting. "In his remarks, broadcast on state TV on Sunday, Iran's Supreme Leader said: 'Some people created riots and encouraged people to stand against the system... paving the way for our hopeless enemies to undermine the Islamic revolution.' He urged opposition leaders to return to 'the right path'. His warning on the alleged insult to the republic's founder was echoed by a statement issued by the Revolutionary Guards." Id. He will tear the constitutional state in pieces to mirror the torn image of the late Ayatollah. There is irony here as well as impiety. This is captured nicely by Grand Ayatollah Montazeri, an opponent of the ruling religious clique, when he suggested that "The current decisions, which are being taken by the minority faction that is in power, are mainly against the interests of the country, and are not in keeping with Islamic principles and values" Edward Stourton, Ahmadinejad's Theological Foes, BBC News Online, October 19, 2009. But more importantly, it suggests that a legitimately constitutional theocratic state may not be possible, even on its own terms.

The torn image of the face of the late Ayatollah Khomeini suggests pretext, hubris, impiety and blasphemy. But whose? As the Iranian state appears ready to turn its apparatus against its own, it continues down a path that deepens the crisis of legitimacy of a 30 year old experiment in religiously based constitutional orders. And so the Iranian clerical class practices pretext, weaving together action and symbol, processed through law, to disguise a less worthy set of objectives behind a facade of lawfulness. With this praetextum, certain elements of the Iranian ruling caste have taken their destinies in their own hands. As the Greeks remind us, the hubris implicit in political pretext can only bad badly. Those who seek to control destiny through this weaving will find themselves woven into a greater design whose parameters are both beyond their control and in which their fates are in part determined by their pretexts.

Friday, December 04, 2009

On June 28, 2009, the sitting President of Honduras, Manuel Zelaya, was removed from office and sent forcibly into exile at the instigation of the Honduran Supreme Court and Legislature., and through the offices of the Honduran military The actions were branded by many as a“constitutional coup” and condemned by many states. Some also condemned the aborted constitutional coup planned by Mr. Zelaya on the eve of his removal from office. Since his removal, the Honduran constitutional crisis has involved significant national and international actors, and the deployment of law—both Honduran and international law. The removal of President Zelaya is most remarkable for its importance in the development of constitutional law in an international context. This disciplining of domestic constitutional law by international standards represents an important innovation. Constitutionalism, once considered solely the province of its governmental organs and subject to the will of domestic popular sovereigns, now appears to have acquired an important international dimension. International law marks the outer boundaries of national flexibility in the internal ordering of its constitutional systems.

More importantly, perhaps, it marks the limits of legitimate interpretation and implementation of that system. To these ends, the institutionalized international order may intervene to correct inappropriate actions taken under color of the domestic constitution. The Organization of American States, and to some extent, the United Nations, has played important roles in the determination of the validity of the removal under the Honduran constitutional system. The removal of President Zelaya was condemned not merely because it might have constituted a breach of the Honduran Constitution, but because it might have constituted a breach of international standards for constitutional order, and the international commitments of Honduras. An agreement for the return of Mr. Zelaya to office was eventually brokered through the United States, after the Brazilians facilitated his secret return to the country, lodging him in their embassy. That agreement effectively internalized international standards within the Honduran constitutional order. Mr. Zelaya was returned to office because the international community,construing the international framework within which the Honduran constitutional order was bound, demanded it. This effectively overturned the constitutional choices made by the Honduran legislature and judiciary in removing Mr. Zelaya from office.

The Honduran constitutional crisis may suggest the growth and institutionalization of the power of the community of nations to intervene in the internal ordering of constitutional conflict to an extent well beyond what might have seemed possible even a generation ago. The Honduran situation, thus, suggests that constitutionalism now serves as a nexus point between traditional constitutional and international law. This amalgam is something new. On the other hand, this conflation of the international and the domestic in constitutional law may represent a means to justify interventionism under cover of law, with ramifications for the use of law as an instrument for neo-colonialism. In either case, its implications are important and extend well beyond Honduras.

The Honduran experience has thus raised complex issues ranging from constitutionalism (removal of presidents, constitutional interpretation, fundamental constitutional norms, etc.), international law (to what extent can international law interact with and project inwards to a national constitutional crisis, what is the role of regional organizations like the OAS or international organizations like the UN, etc.), indigenous law, and transnational constitutionalism (to what extent are states no longer the masters of their own constitutional frameworks). They remain essentially unexplored. Most are veiled behind the insistence of the political classes and their creatures in intellectual and media circles that either nothing new is going on or that action is being taken to preserve this or that form of some now hoary political value over which these actors presume to have some legitimating say-so.

I have been exploring the emerging implications and consequences of the Honduran constitutional crisis for international law, constitutional law and the institution, perhaps, of a more effective framework for transnational constitutionalism.

In a prior essay I raised another of the great issues now affected by the events in Honduras--the evolving standards for determining electoral legitimacy. Larry Catá Backer, Democracy Part XIX: Electoral Legitimacy in Honduras and Afghanistan, Law at the End of the Day, Nov. 29, 2009. I suggested a name for this evolving standard--a false consciousness standard for determining the legitimacy of acts of popular sovereignty in an age of mass democracy. At the forefront of these efforts stand the Brazilians, or rather the Cuba-Brazil theory-politics axis that is now proving quite potent in the region. Here I explore the elaboration of that emerging standard, and consider some of its implications, if only briefly.

Let me first set the stage, if somewhat crudely: Under the terms of the Tegucigalpa/San José Accords(for the original Spanish version, click here) provided that in return for Mr. Zelaya renouncing efforts to call for constitutional changes through a National Constituent Assembly (Paragraph 2), scheduled national elections could proceed in November (Paragraph 3), the armed forces would be restrained from interfering with the elections (Paragraph 4) and the international community would restore their economic and political cooperation (Paragraph 7). In addition, the accords provided for the establishment of a truth commission (Paragraph 6), which would be administered in large part, by elements of the international community (Paragraph 7). The critical part of the bargain for the international community, though, was that Mr. Zelaya would be restored to office for the remainder of his term. But this last part of the deal was subject to the condition that the National Congress approve Mr. Zelaya's symbolic return to office (but certainly not to power). That action would represent an exercise of derivative popular will ("una expresión institucional de la soberanía popular" Accord, supra, at Paragraph 5). For that purpose the agreement permitted the National Congress to consult other actors, and particularly the national Supreme Court. A national unity government (described in article 1 of the Accord) was to be installed no later than November 5, 2009, about a month before national elections were to be held. (Id., article 9). This National Unity Government would "fill the different Secretariats, Sub-secretariats and other agencies of the State, in conformance with Article 246 and succeeding articles of the Constitution of the Republic of Honduras." (Id., Art. 1).

But immediately before the elections were to take place, the Honduran Supreme Court determined that Mr. Zelaya could not legally return to office. Brain Jackson, Honduras High Court Rules that Zelaya Cannot Return to Power, Jurist, Nov. 26, 2009. The National Congress did nothing. The elections were then held. To nobody's surprise, the candidate of the Conservative Party won the elections. Honduras' election won by Porfirio Lobo, Telegraph (U.K.), Nov. 30, 2009. The report noted that "Mr Lobo, a rich landowner, had over 55 percent support with more than half the votes counted and his closest rival, Elvin Santos of the ruling Liberal Party, conceded defeat. . . .But while Washington commended the vote, leftist rulers of Brazil, Argentina and Venezuela and other Latin American countries say the election is invalid because it was backed by the coup leaders and could end any hope of Mr Zelaya returning to power. " Id.

The ceremonial aspects of the election were highly politicized along a left-right axis. It is typical for elite elements of the international community, both representatives of international organizations and transnational civil society actors, to "participate" in small country elections, like those of Honduras, to legitimate the result as free from large scale fraud or other irregularities, This time Many elements of the international community avoided involvement with the election. International organizations declined to send observers for the most part. However, other groups sent observers. Thus while it was originally reported that

A total of 3,000 Honduran and over 300 international observers will monitor the November 29 presidential elections in Honduras, the country's Supreme Electoral Tribunal has said. International monitors will include EU observers, U.S. representatives of the Democrat and Republican parties and Organization of American States officials. A government delegation from Panama is also due to monitor the polls.Over 3,000 Observers to Monitor Honduran Elections, RIA Novosti, Nov. 27, 2009.

By the time the election was held, most foreign institutions had decided to avoid sending send observers. But not all. The United States sent observers, including the National Democratic Institute. In addition, a strong contingent of observers came from right wing groups, and others opposed to the organized opposition to the elections orchestrated by institutional civil society and governmental elements.

Energized by the left-right struggle in Honduras, more than 300 South Florida observers -- from Cuban exiles to activists and academics -- are heading south to monitor national elections that seek to resolve a bitter, five-month political crisis. . . . .The Organization of American States has since suspended Honduras from its membership. Neither the OAS nor the European Union was sending monitors to Sunday's elections. "In the past, we counted on the OAS and if they decide they want to come, we welcome them,'' Denis Fernando Gómez, deputy magistrate for Honduras' Supreme Elections Tribunal, told The Miami Herald. . . . Gómez said the more than 300 observers that registered with the national electoral tribunal had to do so 15 days before the vote to obtain credentials. Many applicants were affiliated with civic organizations and academic institutions. Trenton Daniel and Laura Figueroa, South Florida election observers head for Honduras, The Miami Herald, Nov. 28, 2009.

Other traditionally left leaning organizations in the United States, heavily in the business of legitimating foreign elections, hedged. For example, it was reported that the organization directed by former American President Jimmy Carter, would not send election observers. "However, the center and like-minded colleagues are sending a trio of 'experts' to follow political developments and human-rights conditions." Id.

The elections produced few allegations of large scale voting irregularities. But see, e.g., Honduras: Authorities must reveal identities and whereabouts of people detained today, Amnesty International, Press Release, Nov. 30, 2009. See, e.g., Preliminary Report of the National Democratic Institute International Election Assessment Mission to the Honduran General Elections of November 29, 2009 ("Election day was generally peaceful and orderly. No systematic problems in the process were reported by Honduran domestic election monitors or political contestants. . . . While many aspects of the process took place without widespread or serious flaws, some problems, which were reported by domestic monitors and witnessed by this delegation, did occur. . . . Domestic election observers made an important contribution to the transparency of the election process."). The NDI, however, was unable to verify pre-election conditions. Id., at 5. See also Friends of Honduras, Statement on the National Elections in Honduras, Nov. 29, 2009.The electoral turnout was also in dispute, ranging between an official high of about 61% to a low slightly less than 50% of voters. See, e.g., Efren Bonilla Figueroa, Tribunal declara ganador a 'Pepe', Tiempo, Dec. 5, 1009 ("En la presentación de los resultados se produjo una polémica porque mientras el Tribunal Supremo Electoral proclamó que el abstencionismo fue del 38. 7 por ciento, la Fundación Hagamos Democracia, que tiene un centro de cómputo similar al del organismo electoral, dijo que fue de 52. 4 por ciento."). See also Mary Beth Sheridan, Hondurans go to polls, hoping to end crisis Washington Post, Nov. 30, 2009 ("Turnout was 47.6 percent, several points less than the total in the last presidential election in 2005, according to projections released by the country's electoral tribunal."). But as the reports indicated, those numbers were generated by organizations with political axes to grind. Overall, though, the elections appeared to proceed along the lines anticipated before the June 28, 2009 events. "The election, which was scheduled before the coup, took place mostly peacefully despite a spate of home-made bomb explosions in recent days and police firing tear gas at pro-Zelaya protesters in the city of San Pedro Sula. " Honduras' election won by Porfirio Lobo, Telegraph (U.K.), Nov. 30, 2009.The stakes were high--the election was to be held hostage to the restoration of Mr. Zelaya to office. Without that restoration, it seems, the deal would be "off" and the election declared invalid, irrespective of its validity as election or popular expression otherwise. Elements of establishment elites suggested as much. "'If the U.S. sends election observers before President Zelaya is restored, it would prepare the ground for recognizing the coup regime and its election as legitimate, putting the U.S. at odds with the rest of the hemisphere,'' wrote Robert Naiman, policy director of Just Foreign Policy, a left-leaning think tank." Trenton Daniel and Laura Figueroa, South Florida election observers head for Honduras, The Miami Herald, Nov. 28, 2009. Other elements of American civil society applauded for that very reason. See, e.g., Ray Walser, Ph.D., James M. Roberts and Israel Ortega, U.S. Should Endorse Honduras Elections Results, Heritage Foundation, Nov. 30, 2009. The National Resistance Front Against the Coup put it more bluntly:

1. Since the midnight deadline of Thursday November 5th passed without the restoration of legitimate president Manual Zelaya, we declare we will actively not recognise the electoral process of November 29 of this year.

Elections which are imposed by a de facto regime that represses and violates the human and political rights of the citizenry would only validate nationally and internationally the oligarchic dictatorship and secure the continuation of a system which marginalises and exploits popular sectors in order to guarantee the privileges of a few.

Participation in such a process would give legitimacy to the coup regime and to its successor which would be fraudulently installed on January 27, 2010.

2. The refusal to acknowledge the electoral farce will remain firm between now and the elections even if President Manuel Zelaya is reinstated. A period of 20 days is too little time to dismantle an electoral fraud conceived to ensure that one of the representatives of the coup-making oligarchy will be put in place and therefore give continuity to its repressive and anti-democratic project.

The prior statement does not mean that we have renounced our fundamental demand that constitutional order be returned to Honduras, including the return of President Zelaya to the position he was elected to fill for four years by the Honduran people.

3. Now more than ever it is clear that the exercise of participatory democracy through the installation of a Constituent Assembly is not just a non-negotiable right but also the only way to provide the Honduran people with a democratic and inclusive political system.

4. We denounce the complicit attitude of the US government, maneuvering to stall the crisis and now showing its true intention to give validity to the coup regime, thereby ensuring that the successor government will be docile in the face of the interests of transnational companies and their goal of regional control.

Therefore, we consider correct the decision made by President Zelaya to declare the failure of the Tegucigalpa Agreement, an agreement which is part of the US strategy to stall Zelaya's restoration in order to validate the electoral process.

5. We call on all organisations and candidates in the November 29 elections to act in accordance with previously stated commitments and publicly pull out of the electoral farce.

6. We call together the mobilised and as yet unorganised sectors of the population to join actions which reject the electoral farce and promote acts of civil disobedience, as supported by Article 3 of the Constitution of the Republic, which gives us the right to disobedience and popular insurrection.

7. To the friendly nations and peoples of the world, we call on you to maintain political pressure to overthrow the military dictatorship imposed by oligarchy and imperialism, as well as commit to recognise neither the illegitimate elections of November 29 nor the spurious authorities who seek to pass as representatives elected by the people.

Mr. Zelaya, as has been his habit, poured fuel on the fire. His statement proceeded along substantially along the same basis as the "National Resistance Front Against the Coup." He argued:

The accord has twelve points, and we had an agreement with Secretary Hillary Clinton, as well as President Obama, to move forward on that unified accord. In this sense, it is not as—it was explained by Assistant Secretary Tom Shannon and that it, the accord, goes step by step. It is an accord that needs to be seen in its entirety. We did not sign twelve accords; we signed one accord, and the main point of that is the restitution of the president of Honduras. If this reinstatement does not happen, then the accord fails. The accord had a deadline of November the 5th for the installation of the government of reconciliation and unity. Mr. Micheletti proceeded to go ahead with the accord, installing that new government without me. And when he did this, we then declared that the accord is completely null and void. It is a dead letter. Ousted Honduran President Manuel Zelaya: Talks Are Off with Coup Government After Deal Collapses (Amy Goodman, Interview With Manuel Zelaya), Nov. 9, 2009.

But Mr. Zelaya did more than that. "Deposed Honduras President Manuel Zelaya sent a letter to divided Latin American leaders Tuesday asking them to reject elections held under the regime that backed his June 28 ouster. "I ask you not to recognize the electoral fraud and for your cooperation so that this military coup does not go unpunished," Zelaya said in a letter released from the Brazilian Embassy, where he is holed up under threat of arrest." Zelaya Calls For Latin American Leaders to Reject Polls, Google News, Dec. 12, 2009. This had become a political, rather than a constitutional issue. While Mr. Zelaya played to his potential Latin American allies, the opposition played to the United States and a minority of Latin American States.

The last of the foundational elements of the electoral drama occurred within days of the election, when the National Congress finally acted--to refuse to reinstate Mr. Zelaya to office to serve out the few weeks left to his term. Honduran Congress Votes Down Zelaya's Reinstatement, BBC News Online, Dec. 3, 2009. The vote was close--"Of the 124 members of Congress present, 64 voted against his reinstatement." Id. It was the last of a set of empty gestures, whose valuye had been reduced to nothing in the wake of the elections. "Mr Zelaya, who was ousted in June, had told the BBC that he would refuse reinstatement because he did not want "to legitimise a coup"." Id.

Speaking to BBC Mundo from inside the Brazilian embassy where he took refuge in September, he said: "Will the elections change the military leadership that conducted the coup that ousted me? It remains the same. Will the elections change the composition of the Supreme Court that issued an arrest warrant [against me] without due cause? It remains the same," Mr Zelaya said. Id.

The real prize was the election. And the key to that prize, for Mr. Zelaya, was positioning his own people in the month leading up to the opening of the polls. Once that possibility was foreclosed by the stalling of the National Congress, the value of a mere symbolic return to power was reduced to nothingand the object changed--to attack the legitimacy of the election itself, whether or not it was fairly conducted. "Zelaya, who listened to the proceedings from his refuge in the Brazilian Embassy, said even before the vote that he wouldn't return for a token two months if asked. He said he should have been reinstated before Sunday's presidential election and urged governments not to restore ties with the incoming administration of Porfirio Lobo." Honduras' Congress Rejects Restoring Zelaya, MSNBC, Dec. 3, 2009.

And thus, the stage was set for international reaction to the events. In the generation of justification for political choices, one can discern real dynamism in global consensus about elections--and the relationship between elections (even transparent and fair ones) and the principles of democratic organization and governance. These insights will likely survive this political dispute over control of the government of Honduras, which now pits the United States against Brazil in what some might be tempted to suggest is a contest for neo colonial mastery over the region. Each has sought to invoke its own version of transnational systems and rules to dominate discussion and action within Honduras. But together, the conflict has also produced, if only momentarily, a small space for the exercise of a limited sovereignty within the object of transnational activity. See, Mary Beth Sheridan, After Ousting President, Honduran Elite Defied U.S. Pressure, Washington Post, Dec. 6, 2009.

On the one side stand the United States and its allies in this affair--for the moment Perú, Panama, Colombia and Costa Rica. Theirs is a traditional position, and well known. It is a formalist process oriented standard, one that has seen refinement in the articulation of legitimating standards for the post war regimes in Iraq and Afghanistan, but which is also grounded in the development of non violent means of movement away from dictatorial regimes in places like Brazil, Chile, South Africa and the like through popular expressions of governmental change. The principal focus of this standard are technical and process oriented. Its focus is on preserving a space within which it is possible for the popular will to be effectuated. The traditionally most legitimating method of such expression is through voting. What must be privileged, then, is that expression of mass democratic sentiment in the form in which it is most legitimated expressed. Protection of a system of open, fair and transparent elections then becomes the key to popular expression exercised through the ballot. Process, systems, and operations of the elections themselves are all bent to the immediate legitimating task--the construction of a political space within individuals may express their preferences substantially undisturbed. The range of that expression, the choices available, the context from out of which that space is created are all incidental to the operation of the space for expression. In some curious ways, there is a parallel between these ideas, and those of the role of the state in the preservation of markets where consumers and investors might also be given a space within which to make economic choices. It is the integrity of the market place rather than the choices offered within it that serve as the foundational marker for legitimacy and values maximization.

On the other side Brazil, the ALBA states (Antigua and Barbuda, Bolivia, Cuba, Dominica, Ecuador, Honduras, Nicaragua, Saint Vincent and the Grenadines and Venezuela) and their fellow travelers (principally Argentina). Theirs is a new, and somewhat interesting position. It is a functionalist and substantive oriented standard. This standard takes the position articulated by Mr. Zelaya and reconstitutes it as principle.

In the case of Honduras, "we have to be coherent: we cannot reach agreements with a supporter of the coup, pretending that nothing happened, because soon they'll start to say that everything was Zelaya's fault," said Lula.

He added that his country, Latin America's giant, with a population of 192 million people, "does not compromise with political vandalism."

In equally harsh terms, Argentine President Cristina Fernández questioned the validity of the elections and complained about "double standards" when it comes to judging leaders in the region, depending on where they stand on the ideological spectrum.

"Respect for freedom is neither of the right nor the left," said Fernández. Without naming names, she lashed out at leaders who argue that Lobo should be recognised as president-elect as a compromise solution, saying "there is no such thing as a bit more or less of democracy. It's like being pregnant: either you are, or you aren't."

With regard to democracy, "it's the same thing: either you have democracy, and all rights and guarantees are respected, or you don't have democracy," said Fernández, adding that "respect for democracy in our region has a tragic history, which means defence of democracy must be an all-out defence that makes no concessions." Mario de Queiroz, Latin America: Summit Does not Recognise Elections in Honduras, Dec. 1, 2009.

The essence of the principle is fraud--not in the conduct of the election itself, but in the congtext in which it was held. "Venezuelan President Hugo Chavez, the leader of a socialist bloc in Latin America and a close ally of Mr Zelaya, said the vote was 'an electoral farce.'" Honduras' election won by Porfirio Lobo, Telegraph (U.K.), Nov. 30, 2009. The ALBA position was made clear by the Nicaraguan Foreign Minister,

who presided over the United Nations General Assembly from September 2008 to September 2009, said the coup set an "appalling precedent" and described Sunday's elections as "illegitimate." "What we are seeing now is that a small group of countries, unconditional allies that are heavily dependent on Washington, decided to initiate a process of recognising the elections, but the immense majority of Iberoamerica is opposed to them," said d'Escoto, a Catholic priest. In response to a question from IPS during d'Escoto's conversation with journalists on the role played by Costa Rican President Óscar Arias, the Nicaraguan diplomat accused the president of being "the main instrument of the United States in blocking the return of full democracy in Honduras." Mario de Queiroz, supra

The Cuban position added a level of subtlety. Legitimacy of elections depended on the legitimacy of the governing context in which the elections are held.

“Blessing the electoral process organized by the dictatorship in power in Honduras represents a harsh blow to the democratic values in Latin America and the Caribbean,” the document notes.

“This coup was the beginning of a neo-colonial offensive by the US Government and Latin American national oligarchies that aim at recovering ground in the region in light of the progressive and unstoppable political advancement of our peoples,” the communiqué stresses. ALBA Countries Condemn Elections in Honduras, Cuba News Agency, Dec. 5, 2009.

But Cuba had little to lose and something to gain by taking this stance. It had become clear that ALBA (and thus Cuba) would lose significant influence if the elections were to be legitimated. Even Mr. Zelaya's Liberal Party was prepared to jettison the country's connection to ALBA were they to win. Liberal Party candidate says Honduras to quit ALBA if wins presidential race, China View (Xinhua) Nov. 29, 2009 ("Santos said he does not agree that Honduras would continue to be part of that regional group until they know the real benefits it has brought to the country, because "it has brought us an enormous problem that currently has divided our people." Honduras joined ALBA in August 2008 during the administration of the ousted President Manuel Zelaya, who is also from the Liberal Party. "). At the time it joined ALBA, Mr. Zelaya characterized the move as anti-American (and from his perspective anti-colonialist) as well as anti-capitalist. Honduras Joins Venezuela-Led ALBA, Press TV,Aug. 28, 2008 ("'Honduras did not ask permission from any imperialist country to join ALBA,' Zelaya stressed. . . . Zelaya also hailed the agreement, which is based on complementary trade and cooperation instead of free-market competition. 'This is not for the businessmen, it's for the people, this is for the poor, for solidarity,' he said. ). The elections, whatever the result, would therefore harm ALBA's position in the region. That alone would be temptation enough to seek a principled basis for attacking its legitimacy.

Effectively, under this approach, process considerations in judging elections are secondary or incidental to a judgment of the substantive context in which the elections are held. The principal focus of this standard are substantive and functionally oriented. Its focus is on the values context within which the electorate may freely and legitimately exercise its choices. It is grounded in the idea that the populace is incapable of honest, fair and free choice where the situation in which those choices are to be made are themselves not free. It is not enough to preserve a space within which it is possible for the popular will to be effectuated. Stalin and Hitler, after all, were masters of orchestrating such spaces. Rather, what must be privileged is the sovereign will legitimately expressed. The legitimacy of that expression cannot be measured against process or market ideals, but must instead be measured against the result. Protection of a system of open, fair and transparent elections then becomes a condition precedent to the key legitimating factor--the possible outcomes of exercising the ballot. The range of the possible expression of popular choice, the choices available, the context from out of which that space is created are fundamental to an assessment of legitimacy. Incidental to that analysis are the niceties of the operation of the space for expression. In contrast to the formalist process oriented standard's echoing of market based ideology, the functionalist and substance oriented standard parallels a more interventionist and collectivist ideology. It is the integrity of the result rather than the market place that serve as the foundational marker for legitimacy and values maximization. The collective custom of states, and the imposition of those customs as a limit on both domestic constitutionalism and its expression through formally well-constructed elections, is of the essence. Collective discipline of Honduran constitutional delinquencies might then trump precise adherence to the rules of holding valid elections; substance over process. See, e.g., Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century. Mississippi Law Review, Vol. 27, 2008.But there is fear tinged with theory: "Brazilian President Luiz Inacio Lula da Silva again condemned the election, saying that failure to oppose it could encourage other "adventurers" to stage coups in Latin America. 'If the countries that can ... make gestures do not do so, we do not know where else there could be a coup," Mr Lula said in Portugal on Sunday. His government is increasingly flexing its muscles as Latin America's emerging power and has been disappointed by Washington's response to the Honduras crisis.'" Honduras' election won by Porfirio Lobo, Telegraph (U.K.), Nov. 30, 2009.

Of course, there is a bit of hypocrisy here is slinging the charge of double standards., especially from the lips of Argentine and Brazilian leaders. While it is expedient for Mr. Lula da Silva to declare "'we must not recognise, or even converse with,' Porfirio Lobo (Mario de Queiroz, supra) it makes it harder to defend Mr. Lula da Silva's penchant for criticizing the Americans for doing the same thing with respect to engagement with Iran, for example. Of course, the details of the two situations are different--but essentially substitute's lawyer's arguments for a set of political determinations in search of principles. This is well understood. One gets a sense of the lawyer's tightrope in this political context from a recent statement of Mr. Lula da Silva's chief of staff, Dilma Rousseff.

Dilma diz que eleiçao de Honduras terá que ser considerada, O Globo, Dec. 4, 2009. ("Dilma Rousseff said on Friday during a trip to Germany that the Brazilian government will have to consider the elections in Honduras in the discussions on the political crisis in the country. "In Honduras we were not discussing the election, we were discussing coup. There is a big difference between one thing and another," said Dilma. "I think this new process there [the election] will have to be considered. There was an election." "But we will continue disagreeing (from other governments) in calling the government of [interim president Roberto] Micheletti something other than a coup. We'll have to take that into consideration now." She said the situation in Honduras is "very troubled". "We have to take it [the elections in Honduras] into account. I will not compare with Iran, in Iran there was an election."")

Here it all comes together. In Dilma Rouseff's comments we have crystallized both the importance of the different perspectives reflected in the two emerging standards for judging electoral legitimacy, and the tensions inherent in a single minded adherence to either. A mindless insistence on process as the decisive factor in determining electoral legitimacy ignores the contextual realities that may cabin that choice. And indeed, even the strongest supporters of that position--the United States and its allies--have understood the need for substantive factors in the recently concluded Afghani elections. Yet a mindless insistence on contextual substance as the decisive factor in determining electoral legitimacy subverts the very notion of sovereign will by conflating the illegitimacy of a group of government actors with expressions of the popular will. It too easily permits a politics of false consciousness, which can be abused as effectively as a mindless adherence to process. In any case, it seems likely that the nature of elections, and electoral legitimacy, will see something of a change that will not only survive this conflict among great states for influence and control over a smaller one, but may likely begin to affect the development of theories of elections within constitutionalist democratic states.

Tuesday, December 01, 2009

Christine Bader, Adviser to the U.N. Secretary General's Special Representative on Business and Human Rights (John Ruggie) has just announced the commencement of an important participatory vehicle for individuals and organizations interested in contributing to the developing transnational framework for regulating the human rights impacting conduct of economic enterprises.

The Press Release provides details:

Today the United Nations Special Representative of the Secretary-General (SRSG) on business and human rights, John Ruggie, launched a global online forum, www.srsgconsultation.org. The purpose of the forum is to gather input for the SRSG as he develops guiding principles to operationalize the U.N. "Protect, Respect, Remedy" framework, as requested by the Human Rights Council.

“I’ve held consultations all over the world as part of my mandate on business and human rights, but this online forum will enable a whole new level of outreach and transparency,” said Professor Ruggie. “I hope that a wide array of stakeholders will participate in the forum to share their experiences and reflections.”

The U.N. "Protect, Respect, Remedy" framework is made up of three pillars: the State duty to protect against human rights abuses by third parties, including business; the corporate responsibility to respect human rights, which means to avoid infringing on the rights of others; and greater access by victims to effective remedy, judicial and non-judicial.

The forum is currently focused on the corporate responsibility to respect human rights, the second pillar of the framework. The forum is divided into sections, each of which contains multiple topics with space for discussion and comment. These topics will remain in place through February 2010, although the SRSG may amend them in response to how the discussion proceeds.

This site was built specifically for the SRSG's mandate; it was created and is being maintained by students at The University of Western Ontario as part of their fourth year Design Project. Anybody can register to participate in the discussion and post comments. Recognizing that there are legitimate reasons why some cannot comment publicly, private correspondence can be submitted to moderator@srsgconsultation.org. To date the SRSG has not had the resources to translate the forum into other languages; recommendations for high-quality pro bono translation services that might be able to do so should be sent to admin@srsgconsultation.org.

The forum is not intended to be an introduction to business and human rights or to the SRSG’s mandate. For more detail and background on the mandate, including information about the extensive consultations and research that led to the U.N. "Protect, Respect, Remedy" framework, please visit the SRSG’s web portal, which is hosted by the independent Business & Human Rights Resource Centre: http://www.business-humanrights.org/SpecialRepPortal/Home. New Online Forum for U.N. Business and Human Rights Mandate, United Nations Peress Release, New York and Geneva, Dec. 1, 2009.

Further inquires may be made to Christine Bader via e-mail at Christine_Bader[at]hks[dot]harvard[dot]edu.

The European Union and its Member States should take a global lead and serve as a good example on CSR when building markets, combating corruption, safe- guarding the environment and ensuring human dignity and human rights in the workplace. The European Union is the largest economy in the world and the largest development cooperation partner. Europe hosts many of the multinational enterprises in the world. We welcome that European employers consider it an important task to promote and take a global lead on CSR. Protect, Respect, Remedy – Making the European Union take a lead in promoting Corporate Social Responsibility, Statement at a Conference organized by the Swedish EU Presidency, Nov. 11, 2009.

Sadly, interest in this work lags in the United States, whose approach might be best characterized as benign neglect. Those interested in this work should not neglect this opportunity to add your voices to the discussion.

Sunday, November 29, 2009

In this age of mass democracy, elections are the essence of democratic constitutionalism. Elections, like some purifying elixir, cleanses all (political) sin of states that indulge the practice. An act of sovereign will by which the people of a state convey their political power to agents who act on their behalf, elections conform the appropriate relationship between state apparatus and the sovereign masses. Elections have proven crucial for legitimating states, and their governments. There is a strong connection between democracy and elections. One is impossible without the other. Together they implement notions of popular sovereign in the construction and operation of government.

But not all elections appear to have the same effect. A comparison of international reactions to the recently concluded elections in Afghanistan and those just finished in Honduras suggest that elections, like other legitimating markers of the norms of transnational constitutionalism, can also serve as instruments of foreign policy in ways that will ultimately weaken the value of elections as expressions of legitimating constitutive mass democratic action.

Consider first the recently concluded elections in Afghanistan. The elections were at first deemed suspicious. "Widespread fraud in the 20 August first round led to Mr Karzai being stripped of the outright win he appeared to have secured.A second round run-off scheduled for 7 November was called off after Mr Karzai's sole remaining challenger, Dr AbdullahAbdullah, pulled out saying the vote could not be free and fair." Q&A: Afghan Elections, BBC News Online, Nov. 3, 2009. But the difficulties of the elections, and their dubious reflection of the will of the people, seem to have taken a secondary role to the requirements of the international community in the context of the conflict in Afghanistan. "Western governments were privately reluctant to risk the lives of troops and voters to secure a second round when the result was already a foregone conclusion." Id. As a consequence, the international community adopted something like a "earn legitimacy going forward" approach to elections.

Western diplomats hope that his dubious political mandate will oblige Karzai to "earn legitimacy" by delivering services to his people and cracking down on high-level corruption, thought to be fuelling support for the Taliban. But questions remain whether he will be capable of delivering what the foreign powers demand, particularly as he struck deals during the election campaign with a number of unsavoury powerbrokers, who will expect to be rewarded by the new government. Highlighting the potential problems, he made his commitment to reform whilst flanked by his two vice-presidents, including Mohammad QasimFahim, a notorious former warlord who Karzai selected as a running mate, despite strong opposition from the international community. Barack Obama yesterday moved to bolster Karzai's position, saying that although the process had been "messy", the "results were in accordance with and followed the rules late down by the Afghan constitution". But many Afghan leaders say that is a questionable assertion as Karzai did not receive more than 50% of votes, which the Afghan constitution says the president must have. Karzai vows to fight corruption after re-election as Afghan leader, The Guardian (UK), Nov. 3, 2009.

The results might affect the quest for democratic legitimacy is significant ways. "Observers believe the disastrous election is likely to do lasting damage to western efforts to stabilise the country. Interventions by western powers – first to force Karzai to accept the need for a second round, and then for it to be abandoned – have bred popular cynicism about a democratic process many Afghans now believe is controlled by foreigners. The Taliban have been exploiting the debacle, by mocking the process and sowing fear that they would disrupt the second round through violence." Karzai vows to fight corruption after re-election as Afghan leader, supra.

Yet the recently concluded elections in Honduras have produced something of a different result. With no sign of fraud, important members of the regional international community appear ready to deny the government thus elected recognition as the legitimate successor to the Zelaya government.

The political crisis and election have divided the region, with the US indicating it would endorse the result if the elections are deemed "free and fair". Costa Rica, which has long been the mediator between the two sides in this crisis, has said likewise, but other Latin American countries have opposed the vote. Argentina and Brazil have said they will not recognise any government installed after the election, arguing that to do so would legitimise the coup which ousted an elected president, and thus set a dangerous precedent. The main regional grouping, the Organisation of American States, has declined to send an observer mission. Honduras Voting Stations Close in Presidential Poll, BBC News Online, Nov. 29, 2009.

And the man ousted form the Presidency, has been working hard to discredit the election, scheduled long before his ouster, and in which he is not a candidate. "Mr Zelaya had called for a boycott of the election, saying high abstention levels would discredit the government of the interim president." Id. In what might be the oddest, yet most interesting pronouncement, on elections and legitimacy, Mr. Zelaya has begun to elaborate a position that discredits elections on a sort of "false consciousness" basis.

Mr Zelaya, who was forced out of the country on 28 June, told Reuters it would be undemocratic if the US backed an election held by a post-coup government. "The United States changed its position. Its priority was the restoration of democracy and then elections, now they put elections as the priority," he said in a telephone interview from the Brazilian embassy, where he has been holed up since slipping back home from exile in September. Zelaya Warns U.S. Support for Honduras Election Divisive, BBC News Online, Nov. 25, 2009.

The suggestion, of course, is that there is no connection between democracy and elections. Yet this is a position that might well undercut the arguments Mr. Zelaya has raised in support of his position that his ouster was illegitimate because he was the duly elected President of Honduras who could be removed only by popular action.

But what result these efforts to discredit an election that would rid Honduras of the mostly discredited government that purportedly succeeded Mr. Zelaya? The most logical would be the imposition, effectively, of an internationally sanctioned dictatorship in Honduras. Brazil and Argentina have a vested interest in the person of the individual now no longer the President of the nation. And they appear willing to reinvent the Honduran constitution, in the name of democracy, to advance the cause of a man who would have ended his term as President of the Republic on January of 2010. For it seems that the only alternative to the seating of the candidates chosen by the Honduran electorate would be to reinstate the Zelaya Presidency. But that action would itself constitute a coup as anti-democratic as the late June "coup" that saw Mr Zelaya ushered out of the country. Indeed, neither Brazil nor Argentina make any pretense of even suggesting the need for any sort of internal electoral expression of support for such reinstatement. And even if there were, such an extension of term would be invalid under the Honduran Constitution.

And there is the ultimate object--the revision of the Honduran Constitution so that it conforms to the political tastes of others--the Brazilians, the Venezuelans, the Argentines. All of these potentates purport to act for the Honduran people, yet have a paramount duty to protect and advance the interests of their own states. And non are accountable to the people of Honduras for their political impositions.

And thus a tale of two elections--and two visions of the legitimating effect of popular sovereignty. For Latin America, Hondurans are like children-- incapable of exercising their sovereign rights expressed through elections, in the face of what they consider to be a "coup" effected by the legislature and judiciary in June. Until Brazil and Argentina are satisfied that the Honduran people can vote in a way they deem fair and appropriate, then no popular action will be deemed legitimate. The political advisor to Mr. Lula Da Silva, Marco Aurelio Garcia, made that clear recently.

"Very important countries -- the majority in terms of population and political weight -- won't recognize (the result)," said Garcia. . . . "It would be good if that expectation were not frustrated," Garcia said he told Jones. Recognizing the election was paramount to legitimizing a coup in a region that has been consolidating its democracies, said Garcia, adding that conditions for free elections in Honduras were not present. "The election has the fingerprints of a coup," said Garcia. "If we (accept) it, we're encouraging another country to adopt the same solution -- 'We don't like this president; let's topple him.'" U.S. risks isolation over Honduras election: Brazil, Reuters, Nov. 27, 2009.

Beyond the suggestion of a notion of electoral false consciousness, which Mr. Garcia raises, is the equally interesting notion that electorates are incapable of seeing the falsity of their consciousness. Only foreign states are capable of understanding such false expressions of democratic action. But such an idea has perverse effects. But it also is based on a false premise--that the removal of a President by its legislature and judiciary would invariably constitute a "coup" meant to "topple" a president. At least in this case, the removal effectively followed a pattern more like an impeachment and removal rather than a coup followed by the installation of a repressive regime with no connection with the electorate. Perhaps the international condemnation of the illegal exiling of Mr. Zelaya had this salutary effect. Perhaps those who violated the constitution by exiling Mr. Zelaya ought to be punished--according to Honduran law. But the Brazilian position--separating democracy from elections, suggesting a presumption of illegitimacy to elections that follow democratic dislocations, and conflating elections as expressions of popular will with potentially illegal or unconstitutional actions that might have preceded the elections--provides a dangerous precedent for states interested in interfering with the internal affairs of other states for their own ends.

The oddity of the reactions to the Honduran elections becomes clearer when considered against reactions to the outcome in Afghanistan. In that case even the form of an election of dubious validity served as a sufficient cover to legitimate the government brought (back) to power. In that case, most states, including Brazil and Argentina, raised no objections either to the circumstances in which the elections were held, or the interference in those elections of outsiders. Perhaps the answer is that elections and democracy are more fluid concepts when a state is in the middle of a war in which foreign states have a controlling role. In any case, it seems that consistency, and especially consistency in the application of rules for embracing elections as essential to mass democracy and to legitimate governments instituted thereby, is the hobgoblin of rigid thinking.

Great minds look to elections, democracy and legitimacy, as more elastic concepts. Sometimes, it seems, that elections might not be legitimate when states are willing to apply a "false consciousness" approach to elections and democratic expression, as the Brazilians suggest in Honduras. On the other hand, sometimes otherwise dubious elections may serve as legitimate expressions of the popular will and democratic legitimacy conveyed on the basis of the application of a "earn legitimacy going forward" approach adopted by the United States and others in the context of the Afghan elections. One wonders what might have happened if the "false consciousness" approach had been adopted to deprive Mr. Karzaiof the legitimacy of his election.

Equally interesting would be the application of the "earn legitimacy going forward" approach to the government now elected in Honduras. Thus, for example, it might be possible to condition expectations on the successor Honduran government that night parallel expectations of Mr. Karzai's government, reconstituted to suit the context.

This is not to say that the world should spare Honduras' post-election government a scolding. The current and future authorities in that country, and indeed the region, must understand that democratic free lunches are not available anymore. They must be told, either by U.S. Secretary of State Hillary Clinton, Arias, or Brazil's President Luiz Inácio Lula da Silva (now that he has also been dragged, via his embassy, into this mess) that there will be much democratic debt to repay if the world is to recognize election results and turn a blind eye to the coup. Kevin Casas-Zamora, Courting Disaster in Honduras, Foreign Policy, Sept. 23, 2009.

This sounds like the kind of approaches that appear to have been sufficient to support a substantially more dubious election in Afghanistan. Yet those possibilities also suggest the difficulties of the current state of transnational constitutionalism as a mechanism for ordering frameworks for determining the legitimacy of government--the lack of consensus for determining the legitimacy of elections as a legitimating expression of mass democracy.

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All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

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Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

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About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.